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February 10, 2005

A change in time en bancs Ameline?

In yesterday's Ameline decision from the Ninth Circuit (basics here, commentary here), the final sentence read "No petition for rehearing will be entertained and the mandate shall issue forthwith." But in an order filed today, available here, the Ninth Circuit panel provides:

The opinion filed on February 9, 2005 is amended by deleting the last sentence on page 23. The mandate issued on February 9, 2005 is recalled. The parties shall file any petition for rehearing and/or rehearing en banc no later than February 18, 2005. In the event that such a petition is filed, a response shall be filed within seven days thereafter. See Fed. R. App. P. 40(a)(1), 35(c).

Readers are encouraged to use the comments to establish a betting line for whether Ameline will go en banc.

Comments

Query whether the 9th Circuit has abused its discretion by recalling an already-issued mandate. The 9th Circuit has gotten into trouble for that before. See Thompson v. Calderon (in which the Supreme Court held the 9th gravely abused its discretion by recalling a mandate in order to consider a capital case en banc, where two judges through clerical error had missed the en banc call deadline).

Posted by: Bruce | Feb 11, 2005 10:00:56 AM

Won't go en banc. The panel didn't actually decide anything important that will bind other panels, so why bother?

Posted by: Inside View | Feb 11, 2005 2:23:22 PM

Will not be heard en banc. 40:1

Posted by: WDH | Feb 16, 2005 5:48:44 PM

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